During the first week we looked at the colonial period, taking the story through the American Revolution and the establishment of the Constitution with help from our directors as well as Peter Onuf and legal scholar Lindsay Robertson. and then explore how Americans interpreted that Constitution in the first half of the nineteenth century as the nation reached across a continent.

Among other issues discussed as they relate to American expansion, the institute presented readings and lessons on the treatment of Native Americans and the institution of chattel slavery. We ended with a discussion of the Mexican-American War. Another purpose of the institute was to explain the origins of the ideas of Manifest Destiny and “[portray] American expansion as a halting, debated, and contingent set of experiences that included crucial questions central to citizenship, race, ethnicity, and, of course, the Constitution.”

Opening remarks
Kevin Butterfield teaches in a relatively new constitutional program at University of Oklahoma housed in a department of classics and letters. This department is staffed currently by historians and Butterfield co-directs with a scholar of the Roman republic, Kyle Harper.

It was presented to us that the physical space of Oklahoma is relevant for discussing the issue of westward expansion – clearly from a geographic perspective there is a utility in our location, but also the historical reality of Indian removal has an impact on this state. The organizers purposefully stopped the discussion in 1848 as there are enough constitutional questions up through this period to consider.

Antecedents
After introductions from the group, we began with a presentation from historian Peter Onuf on colonial antecedents as they relate to empire and expansion. Onuf introduced the point that American expansion antedates the American Revolution and also grew out of the process of English colonization.

Early in the discussion, Onuf asked us “how seriously do we as Americans take the Declaration of Independence as both a document AND a historical moment?” By beginning the conversation with the framing and founding of independence as well as the creation of the Constitution, Onuf encouraged participants to think about the document in a collective manner.

Arguably, the Constitution enables the continuation of a process of colonization. It helps the United States to protect the expansion of racialized slavery – SC and GA won’t join the union without these guarantees for the peculiar institution. With this idea, Onuf asked us whether we examine the constitution as part of discontinuity rather than continuity? Was it, therefore, the civil war that tremendously altered the fundamental principles of government rather than the American Revolution? Such a question is at odds with other historians’ interpretations as to the importance of the American Revolution, but both Professors Onuf and Cayton helped participants see the value of at least considering the idea of continuity as a driving force in shaping American history.

Important Questions
As befits the opening day of an institute considering some particularly challenging readings and new paradigms of historical interpretation, the organizers and guest lecturers often peppered the talks with a variety of rhetorical questions along with queries meant to inspire discussion or, in some cases, get a rise out of us. Some inspired samples of these lines of inquiry follow and on occasion, participants and lecturers were able to return to these themes.

Are the American people a self-invented people? We are subjects but after July 1776 have we truly broken the chains?

Does the environment lead us to barbarism or instead does it lead to freedom?

What can drive the Americans is a desire to have rights?

Sovereignty questions were and remain key – how do we resolve them? Were ideas driving the revolution or was it a tax revolt or both? Was it ideas of freedom and liberty that make a bigger difference? Or was there a concern based on money?

Idea of sovereignty is a radical abstraction- why?

Is America a failed British state?

Was there trauma in breaking away from Britain? If so, were colonial elites aware of the painful decision they had reached?

Can you discern nature’s laws as they relate to humanity and rule?

How does one sustain continuity when creating a new government?

Onuf made the case that we can now clearly see, through changing our view of the past regimes, some answers to these questions. For example, though the Europeans would argue that Creoles (those of European descent, born in the Americas) are degenerating because they have left behind the world of refinement, American colonists want continuity of a sort with the life available in Europe. In some instances, American elites who were worrying about these questions were at a distance from the civic and social connections available in portions of Europe, but were still highly cognizant of these connections. Such provincial elites believed their rights and privileges as citizens of Europe were in danger. Arguably, the revolutionary elite in what becomes the United States sought to continue these sets of rights and privileges above all else.

For years, Europeans had known that their future lay to the west – their justification for expansionest actions were often tied to the spread of liberty, civility, and more. As a result of this connection, American patriots, it can be argued, are imperialists though, a very specific kind. In many instances, Americans defend rights and concerns on a regional level (parochial), particularly focusing on the issues of governing themselves. In addition to concerns over debt, American colonists aimed concern at issues of property (slave, land owners, etc).1

Those concerns about property protection were, arguably, continuations from the period when we were under British rule. American colonial elites made reference to the 1772 Somerset decision and the question as to whether an enslaved person could be sold into slavery from Britain to West Indies. These same elites recognized this pre-revolutionary decision as a slippery slope and arguably wrote the Constitution in such a way as to expand protections of and concepts of ownership, though again, in the context of continuity. Because corporate integrity of the colonies was important, it can be extrapolated that both sustaining and expanding the British empire was a key belief of the elite in Europe and among the colonies.

During/after the Revolution

When the colonial elites make the decision to engage with revolution, there is, a level of trauma that emerges. Americans perhaps love our monarchs and then kill the king rhetorically but it was a painful process. Americans invoked nature’s god to an extraordinary length as it related to rule, property, rights, etc. When the colonial elites form their “Continental Congress” it is a term designed to signify the difference between the British of the isle versus the British of North America. Onuf and others asked us to consider whether the word continent were a signifier of something greater? Did these colonial elites see the future of expansion and perhaps the potential of empire? An interesting idea was presented regarding whether Americans desire empire (along the British model – one that preserves property and rights and provides security) yet are willing to risk anarchy. Personally, I found this notion to be a particularly interesting idea. Lying at the heart of the notion is the fundamental problem of how to maintain that union of empire, security, expansion, and preservation of rights. Was it possible that the Constitution itself could sustain stability across the violence of the revolution?

It was argued that nature can be anything you accept as a given and that these givens change all the time, so perhaps it was possible to make war and a nation if you have continuity – Massachusetts for example maintained the second charter as its Constitution until 1780. In wrapping up this discussion, Onuf considered the question as to whether an imperial constitution were a concept fundamentally in opposition to Parliament. As the king was embedded in Parliament, that entity should have sovereignty – yet can that be so in the case of empire? The Declaration, it could be argued, was suggesting that the king’s actions (or inaction in relation to actions taken by Parliament) had reduced colonial elites from one level to the next of the debased and enslaved – we had to strike out on our own in order to preserve the continuity of the protections, rights, and property, etc that the empire had previously provided.

In closing, Onuf observed that the British at home were, in some cases, ambivalent about the future of the colonial elites. Scottish philosopher Adam Smith argued in favor of letting the colonies go free so they can carry the overhead costs of running a government. Smith suggested that the American colonial elite would still see their economy based on the metropolis centered in Britain so what would truly be the difference? In addition to being a waste of money, the desire to keep control of the Americans was a violation of “the most sacred rights of mankind.” Finally, Onuf asked an important question for students of the United States to consider – are we as Americans in denial about the traditions of continuity and expansion that exist within our U.S. Constitution? Have we based our government on republican values in arguably an ostentatious way but also continued the ideas of the imperial system in the form of protecting property, rights, security, etc?

Lindsay Robertson on land, law, and Indian Policy in the Colonial and Revolutionary era
Shifting gears to a more practical series of examples of expansion, Pr. Robertson spoke to participants about the study of law and practices by which land was acquired, purchased, and sold and how Indian titles to the land were extinguished by treaty, purchase, and by conquest.

Pr. Robertson offered us a useful exercise on teaching students about Spanish policy after Columbus’ arrival – instructors might have their students ask, what, were “we” (the Spanish), wanting in relation to this territory? Ultimately, the Spanish created the encomienda system because they cannot pay the native people for the land. All residents were forced to stay on the land and work for the Spanish officials in charge of the land. Could students foresee such a system in their own responses, or perhaps a version of it?

Robertson asked another interesting question about why some Europeans began to question their purpose in the Americas as it related to legally acquiring land. In Spanish territories, after 1513, the requiremento, an example of which can be seen here, was to be read on arrival explaining the legal right to land. This tradition leaves the expanding modern world of the sixteenth century with virtually all countries where Spanish military conquest exists and a ruling class that is highly race conscious. French Canada has some similar logic and the French also appealed to the pope to allow French merchants and explorers to bring Christianity to the Algonquian speaking people of the northern stretches of North America.

These two histories beg the question – why was the English experience different? As English expansion too place post reformation (largely after the 1530s) there remained a religious imperative, yet this reason was not the main motivating factor in extending English territory, property, rights, etc. Arguably there was a more commercial enterprise dominating the experience, and the English entered into treaty systems in large numbers – different from the Spanish. A typical treaty included boundaries, rules for peace, trade, criminal jurisdiction, etc. Students might make use of the treaty of middle plantation in 1670s as an example. Robertson emphasized that the colonial government of the English settlements was largely hypothetical – settlers were filing deeds willy nilly, so restrictions on land purchase (and therefore restrictions on liberty???) were placed into effect. To extend our earlier conversation about concepts of continuity after the creation of the United States, this tradition became part of Federal law as well.

We closed our fascinating (and full) first day with discussions about continuity and discontinuity when it came to dealing with the Proclamation of 1763. The question of land rights acquisition was, argued Robertson, “future forward” interpreted based on Johnson v. McIntosh (or check out this 2 minute summary on youtube). While the latter issue is focused on questions of “discovery doctrine,” the former restricted the ability (right? security?) of American colonial elites at extending their property. Colonial governors were not permitted to grant land and people could not buy land on their own as per the proclamation by the king.

Getting land properly – with a warrant for fixed number of acres, locating the land through examination of public records, marking the boundaries with your initials, bringing back description to the public record, hiring a licensed surveyor who then tries to find it based on your description – was a time consuming process that resulted in your being awarded a patent on the land. After 1763, governors could not issue these patents – in theory, the proclamation prevented the “riff raft” from getting the land ahead of the elites. These elites could locate and mark the land ahead of time awaiting the repeal of the proclamation – if one were to figure out the dates of issuance for license for a particular survey and did a mileage study, one could figure who might have filed claims a bit early.

Robertson described how this “legal” expansion worked for PA wealthy folks – the efforts of Camden and Yorke to change the laws (1757) were related to issues in gaining land title for the British East India Co. in India. An individual named William Murray (1772) discovered that by slightly editing the document which had changed requirement to have the king’s signature for India lands, you could apply it to lands west of the Appalachians thanks to an accident of Columbian nomenclature (see Jack Sosin’s book on White Hall and the Wilderness for more and the original text of the 1757 document compared to the altered version would be a good classroom exercise). Essentially, Murray bought land from the Illini near Kaskaskia for trade goods and wanted to sell the land to Pennsylvanians. British military leaders point out this idea seems weird but ok, admonishing, “remember, you can’t live here.” For their part, General Thomas Gage and Lord Dartmouth, among others, are confused – is this true? Robertson told participants a wonderful tidbit about how Gage’s letter on this topic wonders about the repeal of the proclamation and contains a postscript about “some guys in Boston dressed like Mohawks.” Ultimately, once the revolutionary war starts, the Illinois and Wabash land company tried to get the Continental Congress to legitimize the claims on these lands from before the war.

Because speculation was key to making money, 18th century rich individuals pushed to make money more so through land investment and in so doing, called for extension of British rules of empire – was this the continuity for which Pr. Onuf argued passionately earlier in the day? Perhaps. At any rate, a long day’s introduction in to expanding the borders of the United States and considering the role of law in that process had come to a close.

1.It is important to note that British debt at the conclusion of the Seven Years’ War in 1763 was significant; 14,3000,000 pounds is worth more per capita than the current debt here in the United States (2014). In addition, resolving these financial issues were key to concepts of centralizing the British military state.